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New measures to crackdown on SLAPPs: transparency or muddying the waters?

The fallout of the invasion of Ukraine in 2022 continues to be felt, not least in the legal sphere. Aside from the exodus of legal firms from Russia, and firms reviewing their connections with Russia and the Commonwealth of Independent States (CIS), the government has been vocal in its commitments to stop the use of Strategic Lawsuits Against Public Participation (SLAPPs).

After several high-profile court cases, including for the infamous wannabe Wagner coup leader, Prigozhin (See: How Rishi Sunaks Treasury helped Putin ally sue Bellingcats Eliot Higgins | openDemocracy ), SLAPPs have come to be seen (fairly or unfairly) as a tool most often used by oligarchs and other unsavory individuals.

Here, we talk you through some of the key elements of what makes a case a SLAPP, and the Government efforts and potential legislations designed to curb them.

What is a SLAPP?

A SLAPP has been defined as a form of legal action brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system. Improper has no legal definition, and each case will turn on its merits.

Proposed Legislation – The Economic Crime and Corporate Transparency Bill

Having identified the issues created by SLAPPs in the legal system, legislation was introduced into Parliament in September 2022 in the form of the Economic Crime and Corporate Transparency Bill (the Bill).

The Bill looks set to be passed having completed the third reading in the House of Lords and being at its final stages. Much to the delight of freedom of speech campaigners, the Bill gives judges the power to dismiss oppressive SLAPPs brought by wealthy individuals or large companies designed to evade scrutiny and stifle freedom of speech before the case gets to trial. (See: Crackdown on criminals silencing critics to be added to Economic Crime Bill - GOV.UK (www.gov.uk)).

The amendments come at a time where political furore against Russian oligarchs exploiting British courts to silence their critics is at its highest following several lawsuits British publishers, authors and investigative journalists faced from Russian billionaires and companies. For example, Russian oil giant Rosneft launched a $610 million defamation case against Russian website RBC over its coverage of the companys disposal of assets in Venezeulean in 2020. Later in 2022, Catherine Belton was sued by Roman Abramovich over claims published in her book Putins People that Abramovich has close ties to Vladimir Putin.

The government have justified the amendments to the Bill by emphasising the extra protections it will provide in law for freedom of speech and investigative journalism and to tackle abuse of the legal system by improving judges powers to throw out baseless claims at their early stages (See: Crackdown on criminals silencing critics to be added to Economic Crime Bill - GOV.UK (www.gov.uk)).

The amendments will, if passed, create an early dismissal process within the court system. The government argues that this will diminish the effectiveness of SLAPPs as a tool to threaten journalists or campaigners and give greater confidence to reporters to investigate corrupt individuals and companies. A report published by the Foreign Policy Centre and ARTICLE 19 in April 2022 said that at least 70% of cases of SLAPPs were connected to financial crime and corruption.

If made law, the Bill will, for the first time, define the characteristics of SLAPPs relating to economic crime in law. In its current form, the Bill defines a SLAPP as any claim that:

  1. has or is intended to have, the effect of restraining the defendants exercise of the right to freedom of speech;
  2. any of the information that is or would be disclosed by the exercise of that right has to do with economic crime;
  3. any part of that disclosure is or would be made for a purpose related to the public interest in combating economic crime; and
  4. any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendants harassment, alarm or distress, expense or any other harm or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation.

If a case is commenced, the early dismissal mechanism will comprise of two tests. The first being whether a claim is a SLAPP claim as defined in the Bill and the second is whether the claim has a reasonable chance of being successful. It will effectively put the onus on the complainant to prove that their case has merit.  

How to spot a SLAPP & Potential Benefits and Pitfalls

The amendments to the Bill raise interesting questions about the balancing act between freedom of speech and the right to protect your reputation, as well as questions about what exactly will need to be made out to prove that a claim is a SLAPP.

If passed, the Bill will give judges the power to throw out any case that it considers a SLAPP if they determine, on the balance of probabilities, that the claimant has failed to show that it is more likely than not that the claim would succeed at trial. The rules for determining the nature and extent of the evidence that may or may not be considered by the court when considering whether a claim may be struck out before trial have not yet been determined. The Bill also stipulates that the power to make Civil Procedure Rules must be exercised to ensure that a court cannot order a defendant to pay the claimants costs except where misconduct of the defendant warrants such an order.

In determining whether a claim is a SLAPP, the Court will be asked to consider several factors, including whether:

  1. the costs incurred by the claimant are out of proportion to the remedy sought;
  2. the defendant has access to fewer resources with which to defend the claim than another person against whom the claimant could have brought proceedings against; and
  3. any relevant or anticipated failure by the claimant to comply with a pre-action protocol, rule of court or practice direction.

Potential impacts of the proposed amendments

The unfairness and issues that lie within the new amendments is that the first three elements of the definition of SLAPP as set out in the Bill are likely to be satisfied in many cases. This is because most defamation claims inevitably have the effect of restraining the publishers freedom of speech and, if the information in any way relates to economic crime, it will likely relate to matters of public interest in combatting economic crime. In the age of social media, public investigative journalists and opensource investigators, it is also often the case that the Claimant has greater resources.

The question then remains is whether any of the behaviour of the claimant, and by extension their lawyers, causes, or is intended to cause, the defendant harassment, alarm or distress, expense or any other harm or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation.

Litigation is inherently expensive, inconvenient and likely to cause some sort of stress to both parties. In its current form, there is no clearly established set of standards for courts to follow when determining whether the claimants conduct has gone beyond that encountered in the course of properly conducted litigation. A solicitor who writes a letter that some judges may consider aggressive or who fails to comply with a rule of the court risks their clients claim being thrown out by a judge at its early stages. The Bill could also have significant cost consequences for claimants who will likely be deprived of their costs, irrespective of whether the claim is struck out or not. 

The amendments to the Bill highlight the strong shift towards protecting freedom of speech at the expense of an individuals right to protect their reputation. If the Bill is passed, it will make it difficult for individuals and/or companies who commence proceedings that are wrongly identified as a SLAPP to vindicate their reputation if it has been damaged by the media. It will be vital for claimants to seek advice from experienced defamation and reputation lawyers who understand how the new Bill is set to operate and who are wholly abreast of the courts rules and requirements.

Whether you are facing defamation in the press, by an individual, harassment, blackmail, mishandling of your private data, pre-publication threats, or you wish to gain top legal advice on such matters, reach out to our leading reputation and privacy team today. 

 

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